Lawyer struck off for derogatory comments and threatening behaviour
A former NSW-based practitioner has been removed from the roll following findings of professional misconduct and unsatisfactory professional conduct for making derogatory comments about her client, engaging in threatening behaviour and not making a required costs disclosure.
Denise Elizabeth King, who practiced as a solicitor “in a regional area” of NSW, was acting for a client in mid-2012 in proceedings concerning parenting arrangements for the client’s daughter, specifically an extended trip overseas with her then partner – who was not the child’s father – taking the daughter with her.
Negotiations with the child’s father culminated in an agreement for the client to take the child overseas for eight months in 2013, however, in the course of dictating the final consent orders, the presiding judicial officer of the Federal Magistrates Court specified incorrect dates, resulting in an ordered period of less than the agreed eight months.
The mistaken dates were identified by the client, which led to further communications and negotiations. In late September 2012, Ms King sent an account for $1,330 for work performed to the client, despite a previous estimate “of about $285” for a drafting of orders and having them signed by the judicial officer.
The client’s partner responded by referring to the form of the consent orders, which he said contained mistakes. The Occupational Division of the state’s Civil and Administrative Tribunal noted: “It is clear they contain errors. An examination of the documents indicates that they were produced from software utilised by a provider of legal forms and appear to have been copied from a form which have been produced by another firm of solicitors.
“Whilst the documents referred to the client they also contained other names which had not been deleted when the author had obviously sought to use the form as a precedent. There is also a reference to other parties, including ‘Homer Simpson’.”
Following this, Ms King and the client corresponded, in which the former asked for “immediate payment” of her invoice and said she would send a copy of the sealed orders after receiving payment, and the latter complaining about the handling of her matter (particularly the creation of a document with false names in it).
She said she had spoken directly with the judicial officer and her child’s father to resolve the matter, did not want Ms King to perform further work for her, would not pay outstanding charges and would be “taking the matter further”.
Ms King asserted that “she had represented the interests of the client appropriately and had saved her costs” and “threatened to commence debt recovery proceedings”. The client responded saying the matter had been taken care of and then said, “please stop this now, it is unwarranted!”.
On 3 October 2012, Ms King forwarded an email to the associate of the judicial officer referring to “defamatory allegations” made to her by email (presumably from her client). She then referred to the problems in reproducing the orders because of the mistaken dates, denied forwarding any document referring to Homer Simpson and said the document could only have been generated by the father “in order to cause mischief and/or my client to avoid payment”.
She then referred to allegations made by her client that “she had made excessive charges” for her work, which she denied, and said it was “important that His Honour and the Court are informed of the defamatory and outrageous allegations that have been made against me”, outlining her experience in family law and qualifications.
Ms King also forwarded an email to her client expressing disbelief at a reference to Homer Simpson in the consent orders she had forwarded to her, sent an amended account deleting reference to certain email communications but adding additional communications concerning the allegations, and asked for immediate payment “or I will commence debt recovery and proceedings against you for defamation”.
The client responded by “asking the respondent to stop harassing her”, to which Ms King sent an email accusing her of “telling lies” and said, “I am inclined to ask the (judicial officer) to reconsider allowing you to go to the UK for eight months because of the way you are behaving and will do so tomorrow”.
In a letter dated 3 October 2012, Ms King forwarded a letter to the associate of the judicial officer stating, “I believe that it may be appropriate for His Honour to reconsider the orders he has made in light of the deception of my former client who clearly cannot be trusted”. That letter was forwarded to the client.
The client made a complaint to the Legal Services Commissioner concerning the conduct, which was then referred to the Law Society. In a letter to the Law Society’s Professional Standards Committee, Ms King vehemently denied reproducing the document allegedly containing the names of other parties including Homer Simpson, a reference to a legal software company and another firm of solicitors.
The letter did, however, refer specifically to the allegation Ms King had made “inappropriate comments” to the judicial officer. “A solicitor’s first duty is to the Court. It was my duty to the Court to inform His Honour of the false allegations about me that showed my client was not honest,” she wrote.
“Considering the extent (the client) and (her partner) have gone to in accusing me of having provided the ridiculous orders that an untrained teenager would not have done and then allegedly informing court staff, the associate and His Honour, indicated that (the client) could not be trusted to comply with the orders that His Honour had dictated and I had typed.”
In a letter dated 18 June 2015 to the president of the Law Society, Ms King said that “in hindsight … I could have written a more objective letter, however at the time, I was in shock and emotionally distressed that the client would turn against me in this manner when she had previously been happy with my service”.
In her reply document filed with the Tribunal, she “either denied or did not admit all of the grounds” contained in the Law Society’s application.
Ultimately, the Tribunal was not persuaded that the documents allegedly created by Ms King contained references to other parties including Homer Simpson were in fact created by her, which it said was relevant when evaluating the overall conduct of Ms King.
But the Tribunal was comfortably satisfied that she had written to the judicial officer’s associate “in which she made derogatory comments about her client and the father of the child”.
“As is patently clear from the contents of these communications the respondent disclosed information of a confidential kind and which was prima facie the subject of a legal professional privilege to the presiding judicial officer,” it held.
“Furthermore, the respondent suggested, contrary to the interests of her then former client that the judicial officer should reconsider the orders made alleging that her client had engaged in deception and that she ‘clearly couldn’t be trusted’.”
The allegations made about the client were of the most serious kind, the Tribunal continued.
It was further satisfied that Ms King had engaged in threatening behaviour by “improperly demanding immediate payment of her invoices, and by making repeated threats to institute proceedings for defamation if the account was not paid immediately”, and that she did not make a costs disclosure as required by legislation.
“In our opinion the information conveyed to the judicial officer with respect to her client … constitutes a failure to maintain the reasonable standard of competence and diligence a member of the public is entitled to expect of a reasonably competent solicitor,” the Tribunal said.
The communications to the associate, together with the threatening behaviour, were deemed to amount to professional misconduct. The failure to make a costs disclosure constituted unsatisfactory professional conduct.
In making protective orders, the Tribunal said there was no evidence that Ms King had expressed any insight into the nature and extent of the breach of her client’s entitlement to privilege, nor was there any evidence of any expression of contrition or remorse for her misconduct.
“In the absence of any understanding that she had misconducted herself, and that she has expressed contrition and remorse for what occurred, it must be assumed that misconduct of this kind might continue into the future,” it determined.
“There is no other protective order available in the circumstances of these proceedings than the removal of the name of the respondent from the local roll.”
The Law Society also sought an order for compensation payable to the client, which was stood over for a later date.